Presidency: The Reagan Papers Runaround

by Hugh Davis Graham

Mr. Graham is a professor of history at Vanderbilt University.

President Bush on November 1, 2001 signed an executive order that gives all incumbent and former presidents since 1980 full veto authority in perpetuity over public access to documents in their presidential papers. This was what President Nixon tried to achieve in his 1974 agreement with the head of the General Services Administration (which then included the National Archives), a deal that Congress overturned later that year. To prevent the future destruction or inaccessibility of presidential documents, Congress in 1978 passed the Presidential Records Act (PRA), Washington's major post-Watergate reform.

At the heart of the PRA are two provisions. First, presidential records after 1980 would no longer be the property of individual presidents, but would be owned by the American government and held by the National Archives in trust for the American people. The Archivist of the United States was made custodian of the records and given an"affirmative duty" to make them available to the American public as soon as practicable under the provisions of the PRA. The PRA was thus premised on the primacy of the American public's right to know what their government was doing.

Second, the PRA struck a compromise, seeking to balance legitimate needs for periods of government secrecy against the public's right to know. To achieve this the PRA , borrowing from the Freedom of Information Act (FOIA), provided exemptions to the open-records premise to permit records closure for limited periods in specified areas - for example, national security, personal privacy, trade secrets, confidential commercial or financial information. In addition, the PRA established a novel, 12-year moratorium on access to the president's confidential policy advice in any area. (Archivists called these records P5 documents, named after the 12-year disclosure exemption for the president's policy advice.)

The PRA's 12-year moratorium was a creative compromise that balanced two types of" chill" effect, one desirable and the other not. First, for a period of 12 years following the president's leaving office, the president's policy advisors were protected from the chilling effect that premature disclosure might have on their advice. For the Reagan presidency, for example, the moratorium would last until January 20, 2001. Second, however, the open access premise of the PRA would chill temptations toward abuse of power by executive branch leaders who knew their activities after 12 years would be open to public scrutiny.

During the Reagan presidency the National Archives implemented the PRA smoothly, establishing a White House records management system that would organize and transfer to the presidential library of millions of working-file documents when the president left office. Just four days before the PRA's first 12-year moratorium was set to expire, however, the White House threw the first of three monkey wrenches into the PRA machinery.

MONKEY WRENCHES

On January 16, 1989 President Reagan signed an executive order directing the National Archivist to submit to the incumbent president for"review" all proposals for opening the president's advisory communications. Accordingly, when the 12-year moratorium on the Reagan advisory documents expired in January 2001, Archivist John Carlin sent a proposal to open 37,000 pages of documents to President Bush and also to former presidents Reagan, Bush (senior) , and Clinton. The contents of these proposals were withheld from the public.

The second wrench was thrown into the PRA machinery by President Bush's White House Counsel, Alberto R. Gonzales, who immediately blocked release of the P5 documents. The third wrench was thrown on November 1, 2001, when Bush signed an executive order replacing Reagan's 1989 order.

Bush's new order would turn the PRA on its head, effectively gutting it by reversing its premise of open access. The Bush order gives both incumbent and former presidents, beginning with Reagan, the authority to veto requests to open any records, including advisory communications, in any policy area. To request access, researchers must file FOIA requests that identify an undefined"demonstrable, specific need" to know the contents of the documents. Records would remain closed for an indeterminate period of time unless both the incumbent and former presidents approved opening them.

The Bush administration, rather than working to persuade Congress to change the PRA, instead attempts to reverse it through an executive decree. Normally an executive order may not trump a public law. But Bush is advantaged by congressional unity and bipartisanship following the terrorist attack of September 11, and by Republican control of the House. In the new era of global antiterrorism, U.S. government involvement in clandestine warfare, possibly including political assassinations, is expected to increase, and in the process to intensify government determination to seal off documents from public scrutiny.

The PRA's 12-year moratorium, rather than expire on 20 January 2001, may thus become permanent. Government officials guilty of abuse of power in the old, Nixonian sense, or of"dirty tricks" antiterrorist warfare, in the new, post-September 11 sense, may pursue their goals with greater vigor, confident that the Bush executive order will protect them from future public disclosure. On the other hand, scholars and journalists accustomed to reconstructing their government's policies and behavior from documents in the presidential libraries may find a new wall of secrecy beginning in 1981. With painful irony, this wall is being raised through presidential decrees justified by an alleged need to"implement" post-Watergate reforms the Reagan and Bush executive orders were designed to subvert.

Public Citizen, a public interest law firm specializing in health and safety regulation, consumer litigation, and open government, may sue to overturn the Bush executive order. During the Reagan presidency, Public Citizen challenged a similar Justice Department order requiring the Archivist to abide by assertions of executive privilege by former presidents. That lawsuit, Public Citizen v. Burke, resulted in a 1988 ruling by the U.S. Court of Appeals for the D.C. Circuit repudiating the Reagan administration's position. Such a lawsuit may now provide the only significant hope for avoiding a permanent wall of secrecy between the American people and their government.